Smith v. Boquet

Moore, J. The presumption in faVor of the community, re suiting from a deed made to either husband or wife, may, as between themselves and those claiming under them with notice, be rebutted by proof that the purchase was with the separate funds of either party. Aside, however, from the admissions in the answer of Alphonse Boquet, the husband of appellee, which, of Course, cannot affect the appellant Smith, it cannot be said that the evidence established the fact that the note, in Consideration of which the land was conveyed by Swinney to Alphonse Boquet, was the separate property of the appellee. His answer, -nevertheless, is sufficient as between the appellee and himself to establish his equitable right, and if a trust attached to the land in the hands of the appellant, which could be enforced in favor of Alphonse Boquet, he cannot complain that the trust is passed through Alphonse directly to the appellee. It is also an admitted principle, that a husband may make a gift or grant of the community, or his separate property to his wife, without the intervention of trustees, by a conveyance directly to her. (Story v. Mar [513] shall, 24 Tex., 805.) And if he purchase with his separate property or community funds, and take the title in the name of the wife, the presumption, as between themselves and all others not claiming as innocent purchasers, will be that the property was intended for her, and not for himself or the community. (Higgins v. Johnson, 20 Tex., 389.) It follows, as a deduction from this doctrine, Alphonse Boquet having stated when he furnished the money for the purchase of the land at the sheriff’s sale, that it was the money of the appellee, and that it was furnished for the purpose of buying the land for her, if the purchaser at the sale held the land upon a trust which was binding upon him, it enured to the benefit of the appellee, and the appellant, having purchased with notice, cannot repudiate it. There can scarcely be a doubt, from the testimony, that the purchaser at the sheriff’s sale purchased as the agent, and at the request of the attorney, who was employed to represent and protect the appellee’s claim to the land, and to have it purchased in for her, and paid for it with the money furnished on her account for the purpose. He subsequently often admitted that he had purchased and held in trust for her; and would, no doubt, have conveyed the land to her, but for his untimely death. The only question, therefore, with reference to the transaction, is whether the trust was such an one as the law permits, or the courts can enforce. The presumption, as we have said, in favor of third parties without notice, arising upon the deed from Swinney to Alphonse Boquet, was that the land formed a part of the community property of himself and the appellee, and in favor of creditors it must be held subject to his debts. If, then, the arrangement for its purchase at the sheriff sale, and subsequent transfer to the appellee, was with the malicious or guileful intent of defrauding creditors, the trust is, unquestionably, void. Obviously, a party will not be permitted, under the color and guise of a judicial sale, to conceal and withdraw Ms property from the reach of his creditors. Such a transaction is as justly forbidden as a direct and immediate fraudulent conveyance. And wMle, like fraudulent conveyances directly between parties, it is void as to creditors and purchasers, the courts will not lend their aid in [514] effectuating the secret trust with which it is connected. The interpretation which such a transaction shall receive, depends-upon the object and purpose with which it is effectuated by the parties. It is necessarily, therefore, a question of fact for the determination of the jury. The only difficulty in properly applying the legal principles, by which the present case should be disposed of in this court, is the meagreness with which the tacts- bearing upon it are-presented in the record. A debtor may, unquestionably, purchase, if he does so' openly and publicly, at his own execution sale. And when he is abundantly solvent, we do not perceive that his doing so privately, through an agent in trust for himself, or a member of his family; would indicate a fraudulent intent. Circumstances- may be readily imagined when this might be done without the slightest improper or fraudulent design. On the other hand, it is very apparent that the immediate and evident effect of the purchase of his property, if his-debt remains unsatisfied, with funds furnished by the debtor, by an agent in secret trust for him, or some member of his family, is to withdraw the property from the view of the creditor, and to-hinder, delay, or defraud him in the collection of his debt. This apparent intention may, unquestionably, be dispelled by the facts. But when it is shown that there is an outstanding and unsatisfied judgment, that the funds for the purchase are provided by the' debtor, and that the trust is for one whom he could not prefer to creditors, and color and strength is given to these badges off fraudulent intent by the fact of the secrecy of the arrangement, to say nothing of the additional circumstance that the sale is forbidden, and an adverse title to the property, calculated to deter purchasers, is set up by the (Erection of the debtor, unquestionably it must be said that it devolves upon those who assert the fair-? ness and good faith of the transaction, to present some proof calculated to dispel the presumption of fraudulent intent, otherwise legitimately to be deduced from them. Proof of the value of the land at the time of the sale, and. the pecuniary condition of the debtor, would have thrown much additional light on the transaction. But we are of the opinion that the facts, as presented, to [515] the jury, tend to prove fraud, and that the court below erred in refusing to give the charges upon this point in the case asked by the appellant. And for such error, the judgment is reversed and the cause remanded. Reversed and remanded.